Muroski v. Hnath

• Decision Date: 24 March 1958
• Docket Number: 2540
• Citation: 139 A.2d 902,392 Pa. 233
• Parties: William J. MUROSKI, Sr. and Jane Muroski, both in their own right, and William J. Muroski, Jr., a minor, by William J. Muroski, Sr., his Guardian; Bernice Muroski, a minor, by William J. Muroski, Sr., her Guardian, and William J. Muroski, Sr., Administrator of the Estate of Elizabeth Muroski, Deceased, v. Robert HNATH, George Daniels and Pure Charbon Company, a corportation. Appeals of William J. MUROSKI, Sr., et al.
• Court: Pennsylvania Supreme Court

139 A.2d 902

392 Pa. 233

William J. MUROSKI, Sr. and Jane Muroski, both in their own right, and William J. Muroski, Jr., a minor, by William J. Muroski, Sr., his Guardian; Bernice Muroski, a minor, by William J. Muroski, Sr., her Guardian, and William J. Muroski, Sr., Administrator of the Estate of Elizabeth Muroski, Deceased, v. Robert HNATH, George Daniels and Pure Charbon Company, a

corportation. Appeals of William J. MUROSKI, Sr., et al.

No. 2540

Supreme Court of Pennsylvania

March 24, 1958

Argued November 18, 1957

Appeals, Nos. 342, 343, 344, 345, 346, 347, Jan. T., 1957 from judgments and orders of Court of Common Pleas of Elk County, Jan. T., 1956, No. 118, in cases of William J Muroski, Sr. et al. v. Robert Hnath et al. Judgments and orders affirmed.

Trespass for personal injuries, property damage, and wrongful death. Before TRAMBLEY, P.J.

Verdicts entered for plaintiffs in the amount of $63,000; defendant company's motion for new trial overruled and motion for judgment n.o.v. granted; defendants', Daniels and Hnath motion for new trial as to husband plaintiff granted unless remittitur of $20,000 filed as to his $50,000 verdict; wife plaintiff's motion for new trial granted; motions of remaining plaintiffs for new trials overruled and judgments entered on the verdicts as to remaining plaintiffs. Plaintiffs appealed.

The judgments and orders of the Court below are affirmed.

Lawrence M. Woods, with him B. R Coppolo, Woods and Woods, and Driscoll, Gregory & Coppolo, for appellants.

R. T. Mutzabaugh, with him Robert Pontzer, Mutzabaugh & Healy and Pontzer & Pontzer, for appellee.

Before JONES, C.J., BELL, CHIDSEY, MUSMANNO, ARNOLD, JONES and COHEN, JJ.

OPINION

MR. JUSTICE BELL

Daniels, an employee of Pure Carbon Company, a Corporation whose principal office was at St. Marys, Pennsylvania, was instructed to deliver a package to the Bradford Airport. On October 15, 1954, he picked up, for company, a friend named Robert Hnath. He delivered the package and because of the late hour in the afternoon decided the office would be closed and he would return to his home. He used his own car and was paid wages for his time and eight cents a mile for the use of his car. While driving back he became tired and asked Hnath to drive the rest of the way. Hnath drove negligently and in a collision with Muroski's car, injured Muroski, his wife and three children, one of whom died as a result of the accident.

The jury returned a verdict in favor of all the plaintiffs against all the defendants. The trial Court entered a judgment non obstante veredicto in favor of Pure Carbon Company, and granted and refused several motions for a new trial which will be hereinafter discussed.

It is hornbook law that in considering a motion for judgment non obstante veredicto "plaintiff must be given the benefit of the evidence which is most favorable to her together with all reasonable inferences therefrom.": Bream v. Berger, 388 Pa. 433, 130 A.2d 708.

Pure Carbon Company is liable for a stranger's negligence only if its employee (Daniels) had express or implied authority to engage Hnath to drive the automobile, or if Hnath's employment, because of an emergency, was reasonably necessary for the performance of the work of Pure Carbon Company.

In Corbin v. George, 308 Pa. 201, 162 A. 459, the Court said (page 204): "The relation of master and servant cannot be imposed upon a person without his consent, express or implied. The exception to this rule is that a servant may engage an assistant in case of an emergency, where he is unable to perform the work alone: Kirk v. Showell, Fryer & Co., Inc., 276 Pa. 587; Byrne v. Pittsburgh Brewing Co., 259 Pa. 357. The same principle is laid down in D'Allesandro v. Bentivoglia, 285 Pa. 72, ..." See to the same effect: Ginther v. Graham Transfer Company, 348 Pa. 60, 33 A.2d 923; White v. Consumers Finance Service Company, 339 Pa. 417, 15 A.2d 142.

Plaintiff's contention - assuming arguendo that Daniels on the return trip to his home was still on his employer's business, which the Company vigorously denies and contests ^[*] - that the tiredness of the driver (Daniels) created an emergency which justified the employment of Hnath, is an unwarranted distortion of the above mentioned principle and is utterly devoid of merit. It would permit an employee to take a girl friend or to pick up a stranger for a ride and under any of half a dozen pretexts, permit her or him to drive the employer's car and thereby make the employer liable for the acts of a total stranger. This is not only contrary to established law, but would open wide the door to fraud. Tusko v. Lynett, 326 Pa. 449, 192 A. 410; Reis v. Mosebach, 337 Pa. 412, 12 A.2d 37; Jacamino v. Harrison Motor Freight Company, 135 Pa.Super. 356, 364; Corbin v. George, 308 Pa., supra; Ginther v. Graham Transfer Company, 348 Pa., supra; White v. Consumers Finance Service Company, 339 Pa., supra.

It is clear that the trial Court correctly entered a judgment non obstante veredicto in favor of Pure Carbon Company.

The lower Court also granted a new trial in the suit of Muroski v. Hnath & Daniels (in which Muroski, Sr. is appellant), because the verdict was so excessive as to shock its conscience; granted a new trial to Jane Muroski because of the inadequacy of the verdict; and refused motions for a new trial in the case of Muroski, Jr., a Minor; ^[*] Bernice Muroski, a Minor; ^[*] and William J. Muroski, Sr., Administrator of the Estate of Elizabeth Muroski, Deceased. ^[*]

In considering the action of the lower Court in granting or refusing a new trial, the law is clearly settled - an appellate Court will affirm unless there has been clear abuse of discretion or an error of law. Wargo v. Pittsburgh Railways Co., 376 Pa. 168, 101 A.2d 638; Karcesky v. Laria, 382 Pa. 227, 114 A.2d 150; Smith v. Allegheny County, 377 Pa. 365, 105 A.2d 137; Edelson v. Ochroch, 380 Pa. 426, 111 A.2d 455; Foster v. Waybright, 367 Pa. 615, 80 A.2d 801.

In Karcesky v. Laria, 382 Pa., supra, the Court said (page 235): "'"When a court grants a new trial on the ground of inadequacy of the verdict an appellate court, in the absence of a gross abuse of discretion, will not interfere: Schwartz v. Jaffe, 324 Pa. 324, 188 A. 295; Pretka v. Wilson, 325 Pa. 491, 190 A. 722. When a trial court refuses to grant relief against an allegedly inadequate verdict an appellate court will exercise even greater caution in reviewing its action. ..."'"

President Judge TRAMBLEY in a very able opinion said: "The plaintiff, William J. Muroski, Sr., suffered a fractured pelvis, lacerations of the left knee cap and the face, contusion of the bladder and he was bleeding from his ear. He had to remain in the hospital for about a month and then had to use crutches until about June 1, 1955, during all of which time he was unable to work.

"Mr Jane Muroski, in addition to suffering shock had a fracture of her left femur or thigh and a large contused area on her forehead. The injury to the thigh or femur did not respond to treatment and as a result of this Mrs. Muroski had to undergo surgery on a number of occasions. According to the testimony it would not be possible to determine until about November 1957, whether the last operation performed on Jane Muroski would result in a good union of the thigh bone and, even if it did, Jane Muroski would have permanent stiffness in her left ankle and knee which would be a detriment to her for the rest of her life. ...

"In regard to the motion for a new trial filed by George Daniels and Robert Hnath it is the opinion of the court that the verdict in favor of William J. Muroski, Sr., in the amount of $50,000 is excessive. By stipulation of counsel it was agreed that in the event of a verdict in favor of William J. Muroski, Sr., the total amount of expenses to which he would be entitled would be $14,783.89, which included this plaintiff's loss of wages. The jury, therefore, awarded William J. Muroski, Sr., the sum of $35,216.11 for his own pain and suffering, which at the time of trial was only some pain and fatigue at the end of the day, plus the loss of the services and society of his wife for a period of over two years, and such loss of her services and companionship as he would suffer in the future.

"The evidence disclosed that Mr. Muroski hired a housekeeper to assist his wife for five days a week at the rate of five dollars per day, or about thirteen hundred dollars a year. ...

"It is the intention of the law to compensate persons in cases of this kind for the injuries and losses they have sustained but not to enrich them over and above what would be a fair compensation for their damages and injuries. ... the verdict in favor of William J. Muroski, Sr., is therefore, so grossly excessive as to shock the court's sense of justice and the court will, therefore, as the law requires, grant George Daniels and Robert Hnath a new trial, in the case of William J. Muroski, Sr., against them, unless the plaintiff, William J. Muroski, Sr., is willing to remit $20,000 of the verdict which was returned for him by the jury and accept $30,000 in full payment of his claim: Gail versus Philadelphia, 273 Pa. 275; Martin v. Letter, 282 Pa. 287; McCabe v. Rutter, 89 S.C. 257. ...

" Although Mrs. Muroski suffered the most severe injuries, underwent the most pain and suffering, was in a cast for the greater part of two years, will require further medical attention and surgery which will probably extend to at least November of 1957, and consequently suffer pain in the future, and even if a good union is obtained in the fracture of her thigh, will be permanently afflicted with a stiff knee and stiff ankle, she was only awarded the sum of $10,000. We think that the verdict in...